5 takeaways from the Voting Rights Act arguments

For backers of the Voting Rights Act, Wednesday was a gloomy day at the Supreme Court.

The court’s five Republican-appointed justices seemed to be leaning strongly toward a ruling striking down a provision in the 1965 law that has been a key tool for the federal government to block redistricting plans and changes to voting procedures that could interfere with or dilute minority voting.

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POLITICO LIVE: Supreme Court report

The pre-clearance process that was the subject of oral arguments before the justices applies in most or all of nine states and portions of seven others. The fact that provision applies to some parts of the country and not others was the focus of much of the jousting in court.

The best many supporters of the law could muster to retain hope about the court’s ruling was that just four years ago the law defied expectations and survived intact when the justices used a kind of end-run to avoid upending the landmark civil rights statute.

Here’s POLITICO’s look at the key points from the wrangling in front of — and often among — the justices Wednesday:

Is there smoke behind Scalia’s fiery race rhetoric?

Justice Antonin Scalia won the inflammatory remark of the day award hands down Wednesday with his suggestion that the Voting Rights Act is a giveaway to blacks and Latinos.

“I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It’s been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes,” Scalia said. “There are certain districts in the House that are black districts by law just about now.”

The comment clearly offended Justice Sonia Sotomayor.

“Do you think that the right to vote is a racial entitlement in Section 5?… Do you think Section 5 was voted for because it was a racial entitlement?” she said later, seeming to call out Scalia while nominally questioning the lawyer challenging the law, Bert Rein.

It seems obvious that Congress wasn’t trying to grant special rights when it passed the law in 1965, but trying to cure a problem of Southern states openly defying the federal government’s attempts to guarantee blacks the right to vote. But that doesn’t mean the law hasn’t evolved in ways that arguably encourage greater consciousness of race at a time when the public is less conscious of the issue.

Scalia seemed to imply that Democrats vote for the law to boost their support among minorities and Republicans do so for the same reason or to avoid being denounced as racists.

However, the actual impact of the law is more murky. There’s no question that it has boosted the number of minority Democrats in Congress. But by encouraging states to create so-called majority minority districts, the Voting Rights Act — as enforced and interpreted by the Justice Department and Congress — tends to increase the percentage of white voters in suburban districts and makes more of them “safe” Republican seats.

If the Voting Rights Act went away, or at least the effort to place minority populations in their own district, it’s possible one might see more Democrats elected in the suburbs.

“Everything I’m saying in terms of Section 5 is unconstitutional runs completely contrary to my naked partisan interests,” said Michael Carvin, a Republican lawyer and DOJ official under President Ronald Reagan.